, .



### THE ATTORNEY GENERAL OFTEXAS

Mr~.John B. Winters, Executive Director Opfnion Ro. WW-94 Department of Public Welfare Austin, 14, Texas. RezCan a natural parent delegate to a third party the power to place a child for adoption where such third party is not licensedby the State forthis activity and if such third party does place a child for adoptionhas he violated the provfsionsofArticle 

### 695c,Section 

### 8(a), Subsection 2(b),Vernon's Dear Sir: Texas Civil Statutes, requiring a license?
Your request for an opinion dated March 20, 1957, concernswhether or not a natural mother and/or natural father can delegate to a third personby power of attornev or otherwise the authority to place a child for adoption when said third person does not have a license to place children and whether or not thiswould be a valid parentalrelease and whether it would violate the law relative to child-placing agents. In this connectionyou have mafnly presented two questions:

(1)Can a naturalmother and/or natural father delegate to a third person,who has no license to place children, the authority to place the child for adoption and to give legal parental release to the adoptive parents? (2) In view of Artfcle 

### 46a-Set. 6, Vernon's Texas Civil Statutes and Article 

### 695c,Section 

### 8a, Vernon's Texas Civil Statutes, can a natural mother and/or father give a Power of Attorney to a third person authorizing said third person to place the baby for adoption and give consent to its adoption? If said third person, who holds the Power ofAttorney is notMr. John Ii. Winters, wee 2 ww 94

licensed to place babies, then does the act of placing the baby when the motherhas given said party Power ofAttorney to do so constlstute a violation of the licensing law?
To answer these questionswe must examine our statutes on adoption. They are exclusfve and no authority exfsts to act except as contained therein. Reeves v. Ellis, 257 S.W.2d 

### 876 (Tex.Clv.App. 1953, reh. den. error ref., N.R.E.) Also ;z;: Hickman v. Smith, 

### 238 S.W.2d 

### 838, (Tex.Civ. App., 1951, APP:,d

.error ref.),Bogd v. Wilson, 

### 258 S.W.2d,223(Tex.Civ8 

### !?;53 reh. den. error ref.) Article 

### 46~1,Section 

### 6 of Vernon'sAnnotated Texas Civil Statutes reads in part as follows:

nExceptas otherwise provided in this section, no adoption shall be permitted exceptwith the writttn consent of the living parents of the chfld. 0 D
. 'In the case of a child placedby its parents in a child-placfngagency, or institution licensed by the State Department of PublicWelfare to place children for adoption, it shall be sufficient for the living parents to consent in writing that such agency or Institution place such child for adoptfon, and no further,,consent shall be required by such living parent.
A Power ofAttorney to a third personby parents to place a child for adoptionwould not complywith this statute except as specifically provided for a licensed child-placing agency.Article 695c, Section 8(a), Subsection 2(b),Vernon's Texas Civil Statutes, reads:

"Child-PlacingFacility. Every person, association, institution,or corporation,whether operating for profit or without profit,who shall conduct or manage a child-placingagency, who shall place ans child or childrenwho are under the age of sixteen 

### 16) years, whether occasionallyor otherwise, away from his own home OP relative'shome, shall obtain from the State Department of Public Welfare a license to operate as a child-placing agency,which license shallbe fn full force and effect until suspended or revoked by theDepartment. .

Mr. John H. Wfnters, 

### page 3 WIJ94

of Publfc Welfare as hereinafter provided, except that nothing In thisAct shall prohibit a natural parent from placinghis own child or prohibita grandparent, uncle, aunt, legal guardian,brother or sister,having attained their majority, from placing a childunder the age of sixteen 

### (16) years in thehome of relatives or fn a licensed institutfon,agency, or facility comingwithin the purview of thisAct.” The followin language is contained fn the case of Williams vDLiles, 2 

### 5 S.W.2d 

### 551 (Tex,Cfv.App.1952): t “Under

### 46a Section 

### 6, R.C.S.-Arto

### 46a, Sec. 

### 6, It fs provided,with certain exceptions

. 0

. that no adoption shall be permitted exceptwi,ththe written consent of the living parents of the child. When the statutory exceptions are not applicable consent of the living parents or parent Is prerequisite to a judgmentof adoption.” This case also cites Fitts v. Carpenter, 124 S.W.2d 420, (Tex.Civ.App. 1939, rehearing denied),which states:

%hen statutory exceptions are not applicable, consent of livfng parent to adoptfon proceeding fs prerequisite to a judgmentof adoption bfnding upon the parent.”
Bm 

### 248 S,W.2d 1015 reversed on other grounds, 250 SoW.2d 

### 587, (Tex. Civ, App. 1952) states:

“‘A petitionwas Insufficientunder R.S. Art, 46a, Sec. la when it failed to specify which statutory exception to the necessity for consent of t$e mother was not applicable and relied upon. Further, In Jones v. Willson, 285 S.W.2d 877, (Tex, Civ. App. 1955, err. ref. n.r.e.), 

### this language Is contained:

“R.S.Art. 46a, Sec. 6, whfch permits adoption of a childwithout the consent of ftsmother is to be strictly construed in favor of mother and child.’ 

### We, therefore, find that under the statute certafn acts on the part of the parents or conditions obviate theMr. John H, Winters, page 4 ww 94

neoeeslty for the consent,however, these are set out specl

### fioally and the exletence thepeoi’ must be set out in the petition for adoption and must be clearly shown to exist, 

### These exceptions cannot be 

### enlarged upon and must be followed where parental consent Is not to be relied on. It is specifically provlded InArticle 

### 46a, Sec. 6 that It is sufficient for living parents to give consent to a licensed institution for child-placingso that theymay take and use such authority to place sald child for adoption. It is to be noted, however, that said statute reads:

“A child placingagency OP fnstitution licensedby the State Department of Public Welfare to place children ,foradoption.” This is the only statutory provision giving to a third party consent and power to act in place of a parent.

The provisions ofArticle 695c, Section 8a, Subsection 2(b),Vernon’s Texas Civil Statutes set out the requfrements pertafning to licenses for child-placingagencfes

. The provisions thereinmust be compliedwith for one to be duly authorized to act underArticle 46a, Section 6, Revised Civil Statutes and stateswith or without profit. However9 it does state ‘who shall conduct or manage a chFld-placingagency*, Therefore, for one to be required to complywith the statute concerninga license,he must be engaged in this type of activity.

The express provisions of Article 46(a), Section 6, require thewritten consent of the llvfng parent OP parents where an exception is not clearly applicable. Any consent given by a third party other than a licensed child-placing agency who has first obtained the parents’ consentwould not fulfill the requirements of the statute.

An individualnot engaged in the child-placingbusiness would not be authorized to sign a consent to adoption in place of the parents.

One who operatesas a chfld-placingagent as contemplatedby Article 695c, Section 88, Subsection 2(b),Vernon’s Texas Civil Statutes, and does not obtain a licenseas required therein clearlyviolates the provisions thereofDFurthermore,Article 46a, Section 6, which permits a child-placing agency to give consent after having obtained permissionfrom the parent or parents is requfred to be “licensed”and is, therefore,unauthorized to act without a license. Article 

### 46a states specifically towhom a parentmay delegate authorityMr. John H. Winters, page 5

to place a child and it is our opinion cannotbe delegated to one to whom the authorize.
SUMMARY ww 94

that this authority statute does not

Parentsmay only delegate the right to place a child for adoption to a licensed child-placingagency as definedby statute and such an agency fs the only one by statute permitted to give consent to adoption in place of the parents. One operatfng as a child-placingagency as defined by statutewho does not complywith the provisions for license, violates the statute and is without authority to act. Yours very truly,
WILL WIISON Attorney General

JLS:zt:rh APPROVED: OPINION COMMITTEES H. Grady Chandler,

Chairman Edwin P. Rorner John Reeves Joe G, Rollins F. C.(Jack) Goodman BY Assistant

REVIEWED FOR THE ATTORNEY GENERAL By: Geo. P. Blackburn